United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
Raytheon Company brings this action pursuant to the Resource
Conservation and Recovery Act (“RCRA”), seeking
injunctive and declaratory relief against defendants NCR
Corporation (“NCR”); CECO, Inc.
(“CECO”); and Maurice J. Edwards, III, as Trustee
of the Maurice J. Edwards, Jr. Generation Skipping Trust
(“Trust”). 42 U.S.C. § 6972(a)(1)(B). The
RCRA authorizes private citizens to bring suit in federal
court against any person “who has contributed or who is
contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and substantial
endangerment to health or the environment . . . .”
Plaintiff claims that defendants engaged in industrial
activities at a facility in Wichita, Kansas (“the
Site”), that caused environmental contamination that
may present an imminent and substantial endangerment to
health and the environment. Plaintiff asks the court to
compel defendants to “complete and pay for the
necessary costs of environmental response, investigation,
remediation, cleanup, and monitoring of the contamination . .
. .” (Doc. 1, at 1.) The case is now before the court
on defendants' motions to dismiss (Docs. 9 and 12). The
court first addresses Doc. 12, where defendants CECO and the
Trust ask this court to abstain from asserting jurisdiction
over this case on the basis of primary jurisdiction and
Burford abstention. Burford v. Sun Oil Co.,
319 U.S. 315 (1943).
following facts are taken from plaintiffs complaint and
public records cited by the parties. Defendant CECO and the
Trust bring their motion pursuant to Fed.R.Civ.P. 12(b)(6).
There is some authority for considering materials outside the
pleadings in deciding whether to dismiss based on abstention
and primary jurisdiction grounds. See, e.g., Sierra Club
v. Chesapeake Operating, LLC, 248 F.Supp.3d 1194, 1199
(W.D. Okla. 2017) (citing cases for the proposition that the
court may consider materials outside the pleadings, but
notably in this case, defendants sought to dismiss the
plaintiffs complaint pursuant to both Rule 12(b)(6)
and 12(b)(1)). Nevertheless, because defendants here only
moved to dismiss under Rule 12(b)(6), the court will limit
the facts it considers to those in the complaint and in
public records submitted by the parties and pertinent to
following is a brief timeline of events relevant to this
case. The court does not recount in detail plaintiffs
allegations supporting why plaintiff believes other parties
are responsible for contamination at the Site. For purposes
of this decision, it is only important to understand that
plaintiff wants this court to declare others responsible for
the contamination and any remediation; the reasons why are
not critical here.
• 1962-69: Standard Precision, Inc. manufactured
business machines and produced and refurbished precision
aircraft instruments at the Site. The corporation was
dissolved in 1965 and “Standard Precision” later
became a corporate division of its former parent company,
Electronic Communications, Inc. (“ECI”). In 1968,
NCR acquired a controlling interest in ECI.
• 1962-77: NCR and its predecessors leased the Site and
conducted manufacturing operations that contaminated soil and
groundwater at the Site. NCR absorbed the Standard Precision
Division in 1972.
• 1954-62 and 1977-present: CECO and the Trust and their
predecessors conducted heavy tool and die manufacturing at
the Site. This also caused contamination of the Site.
• 1994: During an investigation on a neighboring
property, a plume of volatile organic compounds was found at
the Site. Since that time, the Kansas Department of Health
and Environment (“KDHE”) has conducted several
investigations at the site and has identified various
chemicals of concern at the Site. The United States
Environmental Protection Agency (“EPA”),
defendant NCR, and defendant CECO have also identified
various chemicals of concern at the site.
• May 1, 2006: KDHE reached a settlement with CECO and
the Trust, resolving liability relating to the Site for those
• December 2017: KDHE issued an administrative order to
plaintiff and NCR, requiring investigation and remediation of
contamination at the Site, as well as reimbursement of
KDHE's past costs.
• NCR has refused to comply with KDHE's order. CECO
and the Trust are not named as parties to KDHE's order.
Raytheon claims that it did not cause or contribute to
contamination at the Site.
• The KDHE administrative action is currently stayed
because plaintiff notified the parties that it was ...